Manning v. Herman et al

Filing 158

MEMORANDUM (Order to follow as separate docket entry) re 137 MOTION to Compel filed by Eugene Douglas Manning, 156 MOTION an Updated Docket Sheet filed by Eugene Douglas Manning, 141 MOTION to Compel filed by Eugene Douglas Manning, 143 MOTION to Quash filed by Eugene Douglas Manning Signed by Magistrate Judge Karoline Mehalchick on 9/14/2016. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE DOUGLAS MANNING,
Plaintiff

CIVIL ACTION NO. 1:13-CV-01426

v.

(JONES, J.)
(MEHALCHICK, M.J.)

DOUGLAS HERMAN, et al.,
Defendants.
MEMORANDUM
Pending before this Court are multiple motions by pro se Plaintiff Eugene Douglas
Manning. Having considered these motions, this Court denies both of Plaintiff’s motions to
compel directed to PrimeCare Medical, Inc. (Doc. 137; Doc. 141), denies Plaintiff’s motion to
quash (Doc. 143), and grants in part and denies in part Plaintiff’s motion for updated docket
entry sheet (Doc. 156).
I.

MOTIONS TO COMPEL – PRIMECARE MEDICAL, INC.
Turning first to Plaintiff’s motions to compel (Doc. 137; Doc. 141) directed to

PrimeCare Medical, Inc., Plaintiff requests the Court (1) order PrimeCare to accept a check in
lieu of their stated accepted forms of payment; and (2) allow for the inclusion of records
obtained after the August 12, 2016 discovery deadline.1 For the following reasons, both motions
are denied.

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The Court finds that the August 1, 2016 motion to compel (Doc. 141), filed three days after
the July 28, 2016 motion to compel (Doc. 137) directed to the same party, supersedes the prior
submission, rendering the July 28 motion moot. The August 1st motion seeks the same result
and merely contains supplemental information.

A. MOTION TO COMPEL ACCEPTANCE OF CHECK AS PAYMENT.
Ordering the acceptance of a particular payment form by nonparties for discoverable
materials falls outside the discretionary scope for discovery matters afforded the courts by the
Federal Rules of Civil Procedure. “It is a well-established principle that the scope and conduct
of discovery are within the sound discretion of the trial court.” Borden Co. v. Sylk, 410 F.2d 843,
845 (3d Cir. 1969). The production of materials—in this case, medical records—by a nonparty
would generally fall under the broad discretionary scope afforded to the Court. However, the
Plaintiff does not request the Court to order production of these documents. Accordingly, the
Court does not find the request sought to fall under the Court’s authority.
Even if the Plaintiff’s motion fell under the Court’s purview, it would be improper to
issue an order compelling a nonparty to act where the nonparty demonstrates a willingness to
comply without court intervention. Rule 37 of the Federal Rules of Civil Procedure states that a
motion to compel disclosure or discovery is warranted only after the movant has “in good faith
conferred or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.” FED. R. CIV. P. 37(a)(1); see also L.R. 26.3. The
Plaintiff has not made a motion to compel disclosure or discovery on its face, however, the
clear intent of the motion is to compel the production of documentary evidence by a nonparty.
The inference required by the plain meaning of the statute is that a motion to compel disclosure
or discovery is only warranted where good faith attempts have failed and movant has exhausted
such means of acquisition. See Shiloh v. John Does, No. 4:12–cv–1086, 2013 WL 4859572, at *2
(M.D. Pa. Sept. 4, 2013) (denying motion to compel where Plaintiff failed to establish
exhaustion of all methods for obtaining information sought). By Plaintiff’s own admission, he
has only sent a letter requesting the documents and offering payment via check. (Doc. 141, at
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1). Plaintiff’s inability to obtain a money order, as PrimeCare requires, given his incarceration,
is acknowledged. However, the procedures in place allow Plaintiff to request documents from
nonparties without the necessity of a money order. For example, a party may request a court
issue a subpoena for the production of documents under Federal Rule of Civil Procedure 45. A
review of the record indicates the Plaintiff has not sought production via subpoena, as is his
right. The supporting exhibits evidence a willingness by PrimeCare to provide the records
requested. (Doc. 141, at 6). Court intervention in the manner sought is not appropriate where
good faith efforts to acquire the documents would produce the same result.
Given the nature of the Plaintiff’s request falling outside the Court’s discovery powers,
the willingness to cooperate by PrimeCare, and the existence of other methods for obtaining the
records without Court intervention at present, the Court denies Plaintiff’s motion to require
PrimeCare to accept the check payment for the costs of providing medical records.
B. MOTION TO ALLOW PLAINTIFF TO OBTAIN AND USE MEDICAL RECORDS
AT TRIAL.
The Plaintiff’s request that records obtained from PrimeCare after the August 12, 2016
deadline be included in discovery is also denied as moot. The discovery deadline is now
October 15, 2016 per the August 15 Order granting Defendant’s motion to take deposition from
Eugene Manning (Doc. 148). Therefore, Plaintiff no longer requires leave of Court to conduct
discovery between the initial August 12 deadline and the current deadline of October 15.
Accordingly, the Plaintiff’s request is denied as moot.
II.

MOTION TO QUASH
Next, Plaintiff filed a motion to quash Defendants’ subpoena to nonparties Dr. Joseph

Thornton and Greencastle Family Practice. (Doc. 143). In the motion, Plaintiff alleges the
medical records requested by the subpoena contain privileged information. Plaintiff further
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avers violations of Federal Rule of Civil Procedure 45(a)(4). Plaintiff moves for the Court to
impose a restriction upon Defendants barring use of medical records obtained as a result of the
subpoena, and the destruction of the records obtained. For the following reasons, the Court
finds the records to be admissible discovery and that Defendants did not violate Federal Rule of
Civil Procedure 45(a)(4). Accordingly, Plaintiff’s motion to quash is denied.
Generally, a party does not have standing to move to quash a subpoena to a nonparty.
Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001). However, “there is an exception
that provides a party standing when he or she seeks to quash or modify the non-party subpoena
on the basis of a privilege or privacy interest in the subpoenad information.” Carpenter v.
Kloptoski, No. 1:08–cv–2233, 2010 WL 126173, at *1 (M.D. Pa. Jan. 8, 2010). Plaintiff alleges
the medical records sought are “private, privileged, confidential medical and mental health
information.” (Doc. 143, ¶ 2). Despite sufficient standing, the Plaintiff’s motion is denied
because the medical records are not privileged.
Plaintiff has filed a civil suit alleging physical injuries caused by the Defendants. Federal
Rule of Civil Procedure 26 allows a party to take discovery on any relevant, non-privileged
material that is reasonably calculated to lead to admissible evidence. FED. R. CIV. P. 26(b)(1).
Any psychotherapist-, psychiatrist-, or physician-patient privilege that might have existed is
waived by the placement of physical and mental condition at issue by the Plaintiff. See Katz v.
Nat’l Bd. of Med. Exam’rs, No. 3:15-cv-01187, 2016 WL 2744823, at *4 (M.D. Pa. May 10,
2016). see also Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997); Topol v.
Trustees. of Univ. of Pa., 160 F.R.D. 476, 477 (E.D. Pa. 1995). “[A]llowing a plaintiff 'to hide ...
behind a claim of privilege when that condition is placed directly at issue in a case would
simply be contrary to the most basic sense of fairness and justice.”' Sarko, 170 F.R.D. at 130.
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Because the Plaintiff has put his medical condition at the heart of this case, evidence relating to
his medical condition is relevant and non-privileged.
In Katz, a plaintiff in an action under the Americans with Disabilities Act objected to a
subpoena by the Defendants, proffered upon a nonparty, seeking medical, psychiatric,
education, and work records of the plaintiff. Katz, at 3. Katz objected on the grounds that the
records contained “sensitive information that is confidential in nature, and that public
disclosure will cause him embarrassment.” Katz, at 3. The court overruled his objection to the
use of a subpoena duces tecum in order to obtain the copies of Katz’s records, but agreed to
safeguards where the defendants marked all received documents as confidential and restricted
their use to the litigation only. Katz, at 3. Here, Plaintiff objects to the use of a subpoena by the
Defendants, proffered upon a nonparty, seeking medical records from Plaintiff’s former doctor.
(Doc. 143, ¶ 2). Plaintiff’s motion to quash focuses upon the confidential nature of the
documents and the potential embarrassment that would come with disclosure of the
information contained therein. However, because Plaintiff has put his medical condition at
issue, information relating to past medical treatment is relevant and discoverable, as it may lead
to admissible evidence.
Plaintiff also contends that Defendant’s subpoena violates the requirements of notice to
parties of subpoenas requesting documents from nonparties. If a party seeks to subpoena a
nonparty and commands production of documents, “then before it is served on the person to
whom it is directed, a notice and a copy of the subpoena must be served on each party.” FED.
R. CIV. P. 45(a)(4). This purpose of the rule is to enable the other parties to object or to serve a
subpoena for additional materials. FED. R. CIV. P. 45 advisory committee’s note. Courts have
deemed contemporaneous service to satisfy the requirements of Rule 45. See In re Asbestos Prods.
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Liab. Litig. (No. IV), 256 F.R.D. 151, 158 (E.D. Pa. 2009) (“[A] party issuing a subpoena to a
third party must send notice to all parties before, or at least contemporaneously with, the
issuance of the subpoena or sanctions will be levied against the violating party[.]”). So long as
the ability of the nonmoving party to object or subpoena the third party is preserved, violations
of Rule 45’s notice requirements will not be considered prejudicial. See CedarCrestone Inc. v.
Affiliated Computer Servs. LLC , No. 1:14–mc–0298, 2014 WL 3055355, at *6 (M.D. Pa. July 3,
2014).
Plaintiff supports the contention that Defendant violated Rule 45(a)(4) by arguing
Defendants effectuated service upon Dr. Thornton and Greencastle on July 22, a week before
effectuating service upon the Plaintiff. (Doc. 143, at 6). Plaintiff’s exhibits include the subpoena
and the attached certificate of service, dated July 22, 2016, where Defendant certifies sending a
copy of the subpoena to Plaintiff via first class mail. (Doc. 145, at 6). Service of discovery
papers, written notices, or similar papers is effective when mailed to the intended recipient’s last
known address at the time of mailing. FED. R. CIV. P. 5(b)(2)(C). Therefore, the subpoena and
notice sent to the Plaintiff are deemed served once put in the mail. Plaintiff alleges Defendant
has falsified the certificate of service, but has failed substantiate that allegation. Absent
evidentiary support that Defendant failed to serve notice on July 22, service is presumed
effective on such date. All evidentiary support provided indicates contemporaneous service.
Even if Plaintiff’s objections to the subpoena raised a violation of the notice requirement of
Rule 45, Plaintiff has not shown evidence of prejudice suffered as a result. Accordingly,
Plaintiff’s motion to quash is denied.

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III.

MOTION FOR UPDATED DOCKET ENTRY SHEET
Finally, Plaintiff moves that the Court provide an updated docket entry sheet. Contained

within the motion is a request for the Court to permit introduction into evidence of recently
acquired medical records pertaining to continued treatment received by the Plaintiff. The
motion to introduce evidence is premature and cannot be ruled upon at this juncture.
“Admissibility as competent evidence is not the hallmark of discoverability; the discovery
standard is less stringent—it requires only a reasonable likelihood that the discovered
information will bring about the production of relevant evidence.” Neuberger and Scott v. Shapiro,
196 F.R.D. 286, 287 (E.D. Pa. 2000). Any relevant evidence in the possession of a party is
admissible unless otherwise provided by the U.S. Constitution, federal statute, the Federal
Rules of Evidence, or other rules provided by the Supreme Court. FED. R. EVID. 402.
Accordingly, materials constituting acceptable discovery do not inherently constitute admissible
evidence. Absent a showing that the records to be introduced are irrelevant or fall under a
restriction imposed by the sources named in Rule 402, they will be admitted. It is the
responsibility of the party seeking introduction of evidence to do so in accordance with the
requirements of the Federal Rules of Evidence, Federal Rules of Civil Procedure, and Local
Rules. No discovery can be introduced into evidence at this stage of the case. Accordingly, this
request is denied. Plaintiff’s motion for an updated docket entry sheet is granted and the Clerk
of Court is directed to provide the Plaintiff with an updated copy of the docket sheet.

BY THE COURT:

s/ Karoline Mehalchick

Dated: September 14, 2016

KAROLINE MEHALCHICK
United States Magistrate Judge
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